For United States Army Corps of Engineers, Defendant (1:12-cv-08456-PAC): Christopher Kendrick Connolly, LEAD ATTORNEY, United States Attorney's Office, SDNY, New York, NY; Robert William Yalen, U.S. Attorney's Office, SDNY (Chambers Street), New York, NY.

For The City of New York Department of Sanitation, The City of New York Department of Design and Construction, Defendants (1:12-cv-08456-PAC): Carrie Elizabeth Noteboom, LEAD ATTORNEY, New York City Law Depart. Office of the Corporation Counsel, New York, NY.

For The City of New York, Defendant (1:12-cv-08456-PAC): Carrie Elizabeth Noteboom, LEAD ATTORNEY, New York City Law Depart. Office of the Corporation Counsel, New York, NY; Christopher Gene King, NYC Law Department, Office of the Corporation Counsel (NYC), New York, NY.

For United States Army Corps of Engineers, Colonel Paul E. Owen, as Commander of the United States Army Corps of Engineers, New York City District, Defendants (1:12cv8458): Christopher Kendrick Connolly, LEAD ATTORNEY, United States Attorney's Office, New York, NY; Robert William Yalen, U.S. Attorney's Office, SDNY (Chambers Street), New York, NY.

For City of New York, Defendant (1:12cv8458): Carrie Elizabeth Noteboom, New York City Law Depart. Office of the Corporation Counsel, New York, NY; Christopher Gene King, NYC Law Department, Office of the Corporation Counsel (NYC), New York, NY.

For New York City Department of Sanitation, New York City Department of Design And Construction, Defendants (1:12cv8458): Carrie Elizabeth Noteboom, New York City Law Depart. Office of the Corporation Counsel, New York, NY.

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OPINION & ORDER

HONORABLE PAUL A. CROTTY, United States District Judge.

Most New Yorkers are agnostic about where their garbage goes, or how it gets there, so long as it goes away. But garbage disposal is both messy and expensive. At present, New York City garbage must be collected, transported, consolidated, transshipped, and ultimately disposed of by means of landfill dumping, composting, energy conversion, or some other mechanism.

For six decades beginning in the 1930s, there was a marine transfer station--a garbage-shipping plant used to dispose of the City's waste--at the intersection of 91st Street, the FDR Drive, and the East River. During that timeframe, the surrounding neighborhood became more residential and affluent. Asphalt Green was developed as a recreational facility. The East River Esplanade, a pedestrian walkway between the FDR Drive and the East River, was created and subsequently renamed the Bobby Wagner Walk. And all during this six decade period of residential and neighborhood development, garbage trucks were driving to York Avenue and 91st Street, transiting over an escalated ramp, crossing the FDR Drive, and arriving at the marine transfer station where the garbage was dumped out of the truck into barges.

The 91st Street marine transfer station ceased operating in 1999. But in 2004, the New York City Department of Sanitation (" DSNY" )[1] revealed plans to build a massive, 70,000 square foot, 10-story tall, Marine Transfer Station (" MTS" ) at the 91st Street site. The MTS will receive thousands of tons of the City's garbage per day for containerization and transportation via barge to remote locations. The project requires multiple permits from New York State and New York City authorities, which are obtained only after numerous public hearings and exhaustive community and regulatory reviews.

Plaintiffs here, Residents for Sane Trash Solutions, Inc., et al., 12 Civ. 8456 (hereinafter the " Sane Trash Plaintiffs" ) and Micah Z. Kellner, et al., 12 Civ. 8458 (hereinafter the " Kellner Plaintiffs" ) (collectively, " Plaintiffs" ), challenge the construction of the 91st Street MTS. Plaintiffs have previously initiated five New York state proceedings contesting all state and local actions related to the construction of the MTS, including the issuance of necessary permits and grants of certification. All of their challenges, however, have been rejected. In one final attempt to prevent the construction of the 91st Street MTS, Plaintiffs bring the present lawsuit, challenging a Clean Water Act (" CWA" ) § 404 permit to construct the MTS issued by the United States Army Corps of Engineers (" Corps" ). The Corps' issuance of the permit was based on its review of an extensive administrative record. Plaintiffs' action is therefore, in essence, an appeal of the Corps' decision to issue the permit.

Plaintiffs claim that the Corps' issuance of the CWA § 404 permit was arbitrary, capricious, and unlawful, and that the Corps failed to take a " hard look" at the transfer station's consequences and alternatives, as required by the National Environmental Policy Act of 1969 (" NEPA" ), 42 U.S.C. § 4321, et seq. Specifically, Plaintiffs allege that the Corps:

Additionally, Plaintiffs allege that the occurrence of Superstorm Sandy mandated that the Corps, the City of New York, and DSNY supplement their environmental analysis and reconsider the permit. (Sane Trash Am. Compl. ¶ ¶ 143-49; Kellner Am. Compl. ¶ ¶ 212-30.)

Plaintiffs also claim that the City and DSNY denied them equal protection of the law in violation of the Fourteenth Amendment and the New York State Constitution. (Kellner Am. Compl. ¶ ¶ 166-80, 181-183; Sane Trash Am. Compl. ¶ ¶ 173-78.) The Sane Trash Plaintiffs also allege that the Corps was " complicit" in the City's violation of their constitutional right to equal protection. (Sane Trash Am. Compl. ¶ 178.) Finally, one of the Kellner Plaintiffs, Asphalt Green Inc., brings claims against the City for breach of contract, trespass, and private nuisance based on the City's intrusion on the Asphalt Green campus for the purpose of constructing the 91st Street MTS. (Kellner Am. Compl. ¶ ¶ 184-201.)

As with Plaintiffs' prior state court challenges to the 91st Street MTS, their claims in this federal action lack merit. Accordingly, the Court denies Plaintiffs' summary judgment motions, and grants Defendants' summary judgment and Rule 12(c) motions in their entirety.

(b) advocate for alternative solutions to disposing trash at the 91st Street MTS; and

(c) protect the residential character of the adjoining Upper East Side neighborhood.

Sane Trash is joined as Plaintiff by an elected official, as well as neighborhood and community leaders.

(2) Micah Z. Kellner is a New York State Assemblyman. He is joined as Plaintiff by Gracie Point, Asphalt Green Inc., and another elected official, as well as community leaders. Gracie Point is an unincorporated association dedicated to preservation and betterment of the Gracie Point neighborhood. Asphalt Green Inc. is a not-for-profit corporation which provides a community recreational facility. It has a 20-year license on a City-owned 5-acre parcel of land bounded by 90th street to the south, 92nd Street to the north, York Avenue to the west, and FDR Drive to the

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east. The Asphalt Green Inc. facility is bisected by a ramp which starts at 91st Street and York and rises as it crosses the FDR Drive to connect with the MTS. The ramp divides the outdoor play facility to the south from the indoor swimming pool and related facilities to the north.

(3) The United States Army Corps of Engineers is a federal agency responsible for considering and issuing or denying CWA Section 404 permits. 33 U.S.C. § 1344. Permits may be issued " after notice and opportunity for public hearing for the discharge of dredged or fill material into the navigable waters" of the United States. 33 U.S.C. § 1344(a). The permit at issue was granted by the Corps' New York District Office.

(4) The New York City Department of Sanitation and Department of Design and Construction are agencies of the City of New York. DSNY applied for and received the Section 404 permit at issue here. Since DSNY is the lead agency, it encompasses all City entities, unless otherwise indicated.

B. New York City's Waste Management Methods

The City generates 50,000 tons of garbage every day. Approximately 25% of this waste, or 12,000 tons, is generated by City residents and not-for-profit institutions.[3] This waste is handled by DSNY, one of the world's largest departments of sanitation. DSNY has nearly 10,000 workers and 5,700 vehicles, and a capital and expense budget of nearly $3 billion.

Over the past half century, the City has utilized many methods to collect, consolidate, transport, and dispose of its garbage. These methods have included using the waste to add to the City's landmass (e.g., Governors Island; Battery Park City; and Willets Point, a former dumping ground for ash and waste which eventually became the grounds of the 1939 World's Fair). Other common methods have included incineration and ocean dumping, but those methods are now banned for environmental reasons (among others). No method of collection and disposal is without objection, and there are no popular methods of disposal. Some attempts at disposal have been comical. Who can forget the barge to nowhere: the Flying Dutchman of garbage disposal?[4] The barge left New York and ended up in the Gulf of Mexico, where it was chased away by the Mexican navy. The barge was eventually returned to New York.

During the last two or three decades of the 20th century, the City's preferred method of garbage disposal was using landfills. But as landfills reached capacity, they were shut down, until finally only one was left: the Fresh Kills Landfill in Staten Island, which was closed in 2001. Until then, garbage trucks would collect residential garbage and transport it to DSNY's eleven existing MTSs, which were scattered throughout the City's waterways. One was located on 91st Street, the site of the current dispute. The garbage trucks would unload at the MTS, by open dumping of the garbage into barges tied up at the transfer stations. The barges would then be towed to Staten Island where the garbage would be dumped into the Fresh Kills Landfill.

The Fresh Kills Landfill grew to the point where it was reputed to be the highest elevation on the East Coast of the United States between Maine and Florida. Staten Island residents protested that they

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were being dumped upon--and they were literally correct.

When the Fresh Kills Landfill was closed, the City began to transship its garbage, primarily by truck, to remote out-of-City landfills. Use of trucks is expensive, and out-of-City landfills and disposal sites have twin liabilities: they are expensive to use and, in any event, have dwindling capacity. Such dwindling capacity forces longer trips to more remote landfills, resulting in greater truck transportation and expense. Since more garbage is moving by truck over longer distances, there is greater pollution.

C. The 2006 Solid Waste Management Plan

New York State Environmental Conservation Law Sections 27-0106 and 27-0107 require that every 10 years the City prepare a 20-year plan, called a Solid Waste Management Plan (" SWMP" ), to manage disposal of the City's municipal waste. The City unveiled its SWMP for the next 20 years in October 2004. The City submitted the plan to the New York State Department of Environmental Conservation (" State DEC" ) for its review and approval in 2006. The SWMP deals, inter alia, with the transition from using in-City landfills to trucking garbage to out-of-City landfills.

The SWMP integrated the systems for managing residential waste, residential recyclables, and commercial waste. The recycling program dealt with the collection of paper, metal, glass, and plastic. With regard to residential waste, the SWMP called for the elimination of the truck-based disposal system, and its replacement by containerizing waste and exporting it long distances by rail or barge. The SWMP provides for commercial waste to be handled at private in-City transfer stations.

A key component of the SWMP is a detailed proposal to develop four preexisting marine transfer stations to handle the residential waste stream, including the 91st Street MTS. The four new MTSs are improvements over the prior facilities. The new MTS at 91st Street will be enclosed and under negative air pressure. Its outside doors will open only to admit trucks, and no dumping will occur until the doors are closed. The negative air pressure is designed to keep the garbage and odors inside the building. The garbage is to be loaded into containers, and those containers are then closed and loaded onto barges for transport to remote disposal sites. The SWMP was designed to reduce the number of truck trips. Given the acrimonious history of landfills and transfer stations, the SWMP provides for borough equity, so that each borough bears its fair share of the garbage it generates.

D. State Proceedings Approving the Solid Waste Management Plan

On April 1, 2005, following an extensive and intensive public review process (including 90 days for public comment and eight public hearings), DSNY issued a Final Environmental Impact Statement (" FEIS" ) for the SWMP. The FEIS addressed public comments about the SWMP (most of which were negative), but found that any negative environmental impacts resulting from the new waste management method could be mitigated. (Noteboom Decl. Ex. 5.) The FEIS was accompanied by the " Manhattan Transfer Station Siting Study Report." (Noteboom Decl. Ex. 7.) This report discussed at great length the City's plan of developing a new marine transfer station at 91st street, the site of the old station. That study examined four proposed alternative sites to 91st Street for the MTS--West 140th Street, West 30th Street, West 13th Street and Pier

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42--but concluded that each site was either not technically feasible, or had other significant obstacles which would prevent its development.

Coincident with the review and approval process for the SWMP, the City submitted the selection of the 91st Street site to the City's Uniform Land Use Review Procedure (" ULURP" ).[5] ULURP requires public hearings and community review before any actions may be taken.[6] The local planning board, Community Board 8, made many, if not all, of the same objections that are made in this federal action almost a decade later, and voted against the proposal, as did the Manhattan Borough President. Thereafter, on April 13, 2005, the City Planning Commission (" CPC" ) voted to approve the proposal. (Noteboom Decl. Ex. 6.) At a City Council meeting in June 2005, the Council voted to disapprove CPC's decision. On June 14, 2005, the Mayor vetoed the City Council's action, which had the effect of restoring CPC's approval of the ULURP. The City Council did not override the Mayoral Plan. (Noteboom Decl. Ex. 7.)

In February, 2006, DSNY, as lead agency, issued its Findings Statement on the SWMP. (Noteboom Decl. Ex. 4.) The Findings Statement was submitted pursuant to the State Environmental Quality Review Act (" SEQRA" ) and the City Environmental Quality Review (" CEQR" ): the process City agencies must undergo to determine the effects their approved discretionary actions have upon the environment. On July 19, 2006, the City Council enacted local legislation granting " the authority for the submission of the proposed final comprehensive solid waste management plan for the city of New York . . . to the New York state department of environmental conservation." [7] (Noteboom Decl. Ex. 1.) On October 27, 2006, the State DEC found the plan to be in compliance with N.Y.S. Environmental Conservation Law § 27-0107(1) and, accordingly, approved the City's SWMP. (Noteboom Decl. Ex. 2.) The approval letter stated:

an Environmental Impact Statement was necessary for adoption of this plan and in April 2005, as lead agency, issued a Final Environmental Impact Statement and Findings Statement . . . . The City's SWMP sets an unprecedented vision for the future of the City's Solid Waste Management. The plan reinforces the State's commitment to sustaining and managing our resources, environment, and economic competitiveness by placing emphasis on waste reduction and recycling, while providing an equitable waste management infrastructure where the needs of its residents, businesses and industry are met.

Upon adoption, the SWMP and the 91st Street Marine Transfer Station were challenged in ...

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